George W. Bush has presented the War in Iraq as our chance to transform Iraq into a democracy with liberty and justice and equality for all.

How long do we think it will take to bring such democracy and political values to Iraq in a way that transforms Iraq into something more in America's own image?

My own answer is: I don't know.

But to answer that question, I look back and ask myself: How long did it take to transform America into a democracy with liberty and justice and equality for all if we locate the beginning of the quest with the Revolution of 1776.

So I'm asking: How long will it take to transform Iraq into a democracy, and how long do you think it took to transform the USA into a democracy (or a representative democracy) with liberty and justice and equality for all?

The Supreme Court is the product of a distrust of democracy and the tyranny of the majority. The founders wanted to check and balance the power of Congress and the President. The Supreme Court is the branch of government that is least democratic, as the judges are not elected.

The judges are one firewall that the founders created to contain the demagoguery of the mob, the passions of the many, the tyranny of the majority. The Supreme Court would protect individual and minority rights against the majority. It is the most undemocratic branch, and it's best to let democracy proceed.

But democracy--or the tyranny of majority rule--can be dangerous and needs to be checked, and that is one function of the Supreme Court. If the majority is pro-segregation, the Supreme Court can check the majority by protecting minority rights and ruling that segregation is unconstitutional. The amendment process is very slow, and the Constitution can only be amended by a supra-majority process. But we need something to protect individual and minority rights, and the Supreme Court does this by judging some legislation to unconstitutional.

Some may believe that Affirmative Action is unconstitutional. So if you do pass an amendment. So then one could say to these people: Don't depend on the Supreme Court to rule it unconstitutional. But I believe the Supreme Court has the power and authority to judge Affirmative Action either constitutional or unconstitutional. Yes, the Supreme Court has power, and it's more undemocratic than any other branch, but this is what our wise founders thought was best, and so it has proved. Of course, through elections we can select the president we want who will appoint the type of Justice with the theory of constitutional interpretation that we prefer.

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PerfectMatch:

OK, you are an engineer. So let me try to make an analogy to science about the interpretation of the Constitution.

You could say there are centripetal and centrifugal forces, and both are in operation when it comes to my theory--and other's theories--about interpretating the Constitution.

The centripetal side is the strict construction, focused on original intent. It wants to hold things close to the original intent. But there's the danger of getting too sucked in and remained fixed in the values, beliefs, and opinions of 1789. Jefferson says the earth belongs the living, and he recognized why we need some flexibility, some centrifugal force to free us from the dead hand of the past. (But he also saw the dangers of too much flexibility, and thought without restraint, the Constitution would be soft wax in the hands of the judge.)

It's the same thing in politics: Conservatives want to hold down, conserve, slow down change, maintain stability. Liberals want progression, forward movement change. Too much of either extreme is dangerous, so we want a balance of centripetal and centrifugal, of stability and change.

Too much liberty leads to anarchy. Too much authority leads to tyranny. We need a balance between liberty and authority. Too much individualism leads to fragmentation (and loneliness). Too much community leads to conformity and a suffocation of the the individual. We need to balance individualism and community, liberty and authority, strict construction and loose construction.

We need to balance the extreme right wing against the extreme left wing and try to keep American politics more in the center. Some times it's good to swing to the left; some times it's good to swing to the right.

The idea is too keep swinging.

But even couples who swing need to balance a commitment to the marriage with the liberty of playing and giving a loose construction to the marriage contract. A strict construction so no fucking anyone but your wife. A loose construction says you can fuck others with spouse's permission.

As swingers, we try to balance a commitment to union (our marriage) with the liberty to swing. As interpreters of the Constitution, we try balance both as well...seeing at time the need to hold tight and at other times the need to let go.

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James Madison, the primary drafter of the Constitution, described the Constitution, like all laws, as penned in language that is "obscure" and "equivocal" and in "abstract" and "general" terms.

The Constitution is composed of language. It is a text made of words or a literary text, and courses in constitutional law and interpretation in law schools now include courses in literary theory and Law Schools teach courses in Law & Literature, comparing interpretation of texts in law and interpretation of a legal text. Legal theorists and scholars and judges often have compared the Constitution to a literary text and a poem.

As the entire history of the Constitution shows--and as any split decision by the court shows--the same words can be understood differently by different people. Language is not fixed in its meaning.

Do we want to be governed by what "cruel and unusual punishment" meant back in 1789? If we look at what was accepted as punishment back then, it would turn our stomachs now, and we reject it. I think it is helpful that there is a debate whether capital punishment is "cruel and unusual." Some judges believe it is; other's don't. Who is right?

We need a Constitution that provides at once stability and flexibility. If it is fixed in its meaning, the Constitution has no flexibility to adapt to changing circumstances or new ideas and beliefs and values. If too loose in its meaning, it's too prey to manipulation or it fails to provide enough stability. There's a balance between being confined by the letter of 1789 and just beiing governed by whim or the spirit. The Constitution has proved itself to be both a very flexible and a very stable governing law.

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PerfectMatch: "Why waste all that time looking to see what the founder's had to say when you believe in a Living Constitution???"

If I want to understand myself as an alive person, a living human being, who has evolved and grown up, I would include in any study of myself--to understand who I am--a close study of the circumstances of my birth, looking at my parents and also studying my DNA.

But I'd also observe myself along a continuum, not just trying to understand myself by looking at how I was when I was born (or from ages zero-7 years old), but who I am as I have grown up and learned more and experienced more, looking particularly at key developmental places in my life.

To understand the Constitution, we need to study it at the time of its brith and in its earliest years, and study its DNA, but we also want to understand its evolution and development, and interpret it also in the light of the development and changes in the USA.

From the time of my first memory for 5-7 years afterwards, I had wanted to be a professional baseball players. That was my original intention for my life. My Mom also always taught me to serve people. So from my earliest years, my intention has been to do something to serve people and promote the welfare of others. But I've changed in the way that I want to do that..... and I've gone from wanting to be baseball player to a lawyer to a teacher.

To interpret the Constitution, we need to look both at its origins and its development and consider how we best thing we can fulfill its intentions--or its spirit--in 2008.

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Joeodd, Thanks man. I've your post and agree with your line of thouht and opinions ( haven't read all). I just wanted to clarify. The majority I ment was "disenfranchised".

It is a vicious system and when you look at the states that don't allow felons to vote, yes RED states. In old brother 'JEB's" (brother of the resident of 1600 penn), during the 2000 election 1.1 million residents where not allowed to vote for this reason. Over 70% percent were minorities. During election the state had two ,TWO phone lines available to mediate issue like this. This is the new opression, one must look deeper into the underling causes of poverty, sexism, racsim and any means to keep folks apart. The powerful have mastered this game and sadley because of sports, oj, brittney and an apathtic population the continues and will only when these elites destroy this world as they're waving bye-bye on the way to one of those space colonies to start fucking up someone else plant.

PS: Folks don't for get that 3/5ths clause our great leaders added to the most revered document? And when did our women get the right to vote? They could die in war but, couldn't vote. WOW that sounds like another group that bled I know, they too bled for this country (in every war) yet didn't get the protected right to vote tell 1965. I use to believe in the constitution, now it is right up there with santa, satan, easter bunny and jesus. All fantasy.

People you better look to the stars for the answers? Keep Freethinking, Randy

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PerfectMatch: "You'll also notice Sapp tries (unsuccessfully) to argue many points such as 'promote the general welfare' from an original intent arguement." Where did I do this? Cite my words!

Here's my theory of interpretation of that phrase in my words (rather than in words you try to stick in my mouth).

As a judge, to interpret that phrase "promote the general welfare" in 2008, I would begin by studying the founding documents, any debates about the meaning of the word in the Constitutional convention, what Madison said about it in The Federalist Papers, and then I would study the history of interpretation in a series of legal decisions beginning at the start of USA history and continuing until 2008. I would try to understand its original intent, its first interpretation but also subsequent interpretations, focusing also on recent cases involving interpretations and judgments of those words.

I would also take a common sense approach to those words and say what do we want to mean in 2008 by a desire to promote "the general welfare." Since promoting the "general welfare" is one of the ends of government as envisioned by the founders, how would they be responding to the conditions of America in 2008 if they were alive and were interested in promoting the general welfare. I would also ask what do we, as citizens in the USA, want to mean by promoting the general welfare in terms of creating a more perfect union. Do we want to accept 37 million citizens without health coverage? Do we want to accept millions of people hungry and starving in America if they had no access to food stamps? In 2008, what is our idea of what a more just and more perfect union would look like?

so my interpretation would be balanced by looking at original intention in a strict way but also trying to interpret the spirit of those words and the Constitution itself...and I see the spirit of the Constitution is to promote the general welfare....so I would legitimate, under that phrase, food stamps and medicare and social security and some form of welfare/workfare such as existed in Jefferson's Virginia when he described such programs of caring for the poor in his "Notes on the State of Virginia."

I've given you leading legal texts from 1834 and from 1921 that refute what you say that very few people supported strict contruction by discovering original intent before 40 years ago. You have to dismiss Story and Oliver Wendell Holmes and the Legal Realists and Thurgood Marshall and many more. I give you facts and primary sources, and you ignore them.

What Story and Holmes and the Legal Realists recognized is that inevitably the Constitution is interpreted in subjective ways, influenced in part by context and time personal belief of the Judge. How else can you explain how and why so many judges have differed in their interpretation of the Constitution.

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Correction:

Yes, there was an election. But the decision that made GW Bush President was a decision made by the Supreme Court, which Gore decided not to contest.

I concur with the dissenting opinion of Justice Stevens:

"What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent."

Note what Stevens says: The decision in Gore vs. USA will bring a loss of confidence "in the judge as an impartial guardian of the rule of law."

Scalia and Thomas never showed their willingness to engage in judicial activism or the subjective politics of judging more clearly than in this decision.

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Debjack:

Of course, the Supreme Court did not elect GW Bush. There was not election. The Supreme Court made a decision, a split decision, in favor of trumping over the constitutional process for resolving a disputed election, and they, in effect, appointed Bush President with that decision, a supreme act of judicial activism by Scalia, Thomas and those who decided with them.

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For PerfectMatch, the foolish fool:

From Benjamin Cardozo's "The Nature of the Judicial Process" (1921). (It's a classic work used in law schools)

"I was much troubled in spirit, in my first years on the bench, to find how trackless was the ocean n which I had embarked. I sought for certainty. I was oppressed and dishearted when I found that the quest for it was futile. I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience. I found...that the real heaven was always beyond. As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of the mind, the pangs of death and the pangs at birth, in which principles that have served their day expire, and new principles are born."

Cardozo denies that judicial process is about "discovery" of original intent and claims that it is about creation, a strong case to refute your claims (and the politics of Scalia's proclaimed method for constitutional interpretation).

During the 1930s, a school of legal thinking called "legal realism" began to develop and take strong hold in politics and law schools and this "legal realis" recognized that interpretation of the Constitution was a political act and not an objective science.

From Wikipedia:

"Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

It has become quite common today to identify Justice Oliver Wendell Holmes as the main precursor of American Legal Realism (other influences include Roscoe Pound, Justice Benjamin Cardozo, and Wesley Hohfeld)."

Perfect Match: Hint. Make like Romney and bow out as you said you would. Trying to match history and wits with me will just prove how limited you are in your knowledge. Do you really want to keep showing that off?

TOPIC: How long did it take to achieve democracy in the United States of America

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